Texas Judge Blocks Obamacare Transgender Protections
A federal judge in Texas has issued a nationwide preliminary injunction against the Obama administration’s trans-inclusive healthcare rule requiring doctors to treat trans patients and affirm their gender identity.
U.S. District Judge Reed O’Connor released the 46-page decision on Saturday, December 31, in a case brought by Texas and several other states against the Affordable Care Act’s rule preventing sex discrimination. Due to come into effect at the beginning of 2017, the new legislation also would have prevented doctors from denying a woman abortion-related care.
O’Connor claims that the rule violates the Administrative Procedure Act, which governs the President’s ability to make rules based on the power Congress allows, as well as the Religious Freedom Restoration Act.
He further argues in the ruling that the states and nonprofits in this suit had standing to sue — and would likely win on the basis of their assertion that they are directly harmed by being made to implement the rule.
O’Connor asserted that if this case ultimately fails, no one will be harmed by a delay in the rule:
The agency’s six-year delay in issuing the Rule strengthens the Court’s conclusion that the delay imposed by the injunction would work no significant harm on Defendants. The injunction would merely maintain the status quo — allowing HHS to prohibit sex discrimination in healthcare services as defined by Title IX and incorporated by Section 1557. If the Rule is invalid, it will be set aside in its entirety and the public interest will be served by the injunction. But even if the Rule is valid, the injunction will merely delay its implementation, pending final review on the merits.
O’Connor, a George W. Bush appointee, has already blocked another trans-inclusive directive – in that instance, the Obama administration’s assertion that existing federal sex discrimination protections cover trans students and, therefore, no school may discriminate against them. In a departure from several other courts, he claims that Congress had not even conceived of gender identity protections at the time of creating Title IX or Title VII.
In addition, O’Connor notes that Congress has previously defined gender identity as separate from sex in the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act and the Violence Against Women Act. If Congress had intended to protect trans people in the Affordable Care Act, O’Connor argues, it could have done so by specifically including gender identity.
Despite Congress’ clear recognition of gender identity – and the inextricable link between sex and gender — O’Connor insists that the Obama administration may have overstepped its bounds and created protections it was not given the authority to create.
Trans rights groups are particularly annoyed that one federal judge has been able to block what other courts would likely have deemed a suitable use of executive authority.
O’Connor, who clearly has a history of issuing anti-trans opinions, has prevented the Obama administration from enforcing the rule not just where it applies to religiously affiliated institutions, but also nationwide.
The Obama administration could appeal for O’Connor to limit the scope of the ruling to plaintiffs, even as it works to defend the law. Based on O’Connor’s broad reasoning, however, the judge appears to have indicated that he believes pausing the rule from nationwide effect is the only viable solution until the courts have resolved this debate.
In the meantime, Keisling is keen to point out that federal law is still being interpreted as trans inclusive, so even without this rule in effect trans people can still sue if they feel they have been victims of discrimination.
While we have focused on this ruling as it applies to trans health care, it also blocked a ban on discriminating against women when it comes to abortion care. O’Connor ruled that there are “numerous” other options open to the government for expanding both gender transition and abortion care. Therefore, he claims, the rule is not the “least restrictive means” and so falls foul of the RFRA.
Essentially, O’Connor believes that providing trans-related health care or abortion-related care could violate a provider’s religious freedom — never mind the patient’s needs.
In both cases, the new rule will be subject to the Trump administration’s decisions on whether to allow all or parts of the Affordable Care Act to stand. Given the Trump campaign’s hostility toward the policy, this may not be a successful battle for LGBT advocates, but it certainly is one worth fighting.
Photo Credit: Will O'Neill/Flickr